E Simplicio v Alfona Limited — 2021

Edgar Simplicio worked as a waiter at Alfona Limited’s Italian restaurant from 2007, becoming a permanent waiter in September 2007. The tribunal heard evidence about disputes after Alessandro Cretella took over the business in 2016, including disagreements about cleaning duties, the owner’s working style, and conduct the claimant said affected trust and confidence. The tribunal found that some of the matters relied on by the claimant, such as occasional lying down, walking around briefly without shoes, leaving some toothpicks around, and clapping to motivate staff, were not conduct that amounted to a constructive breach in the circumstances of this case.

The tribunal accepted that Mr Cretella had a medical condition causing excess gas, and found that burping near the claimant, loudly breaking wind and wafting the smell, and asking whether the claimant wanted to see a photograph of his faecal matter were inappropriate. It held, however, that those incidents, although unreasonable, were not by themselves serious enough to destroy or seriously damage trust and confidence. The tribunal also found that the claimant had raised a pay discrepancy in mid-2019, that he was being paid for 22.5 hours rather than his contractual 25 hours, and that the respondent had not corrected the back pay promptly. It held that this was a breach of the express term of the contract and of the implied term of trust and confidence.

The decisive conduct was the shouting incident on 1 August 2020, when Mr Cretella angrily swore at the claimant about the missing safe key and the request for bread. The tribunal found that the claimant felt shaken by the exchange and later resigned at the end of the 1 September 2020 meeting, without affirming the breach. It held that the resignation amounted to constructive dismissal within s.95(1)(c) ERA 1996 and that, because there was no fair dismissal process, the dismissal was unfair under s.98 ERA 1996.

On remedy, the judgment did not quantify the final monetary award in this liability decision. It held that compensation should be limited to six months on a Polkey basis and that there should be no reduction for contributory fault. The tribunal noted that the parties had agreed and paid the back-pay shortfall of £2,171.34 in early October 2020, but that figure was not the tribunal’s award in this judgment.